Federal judge urges prompt appeal to Court on transgender rights

LYLE DENNISTON
JUN 1, 2016 6:11 AM

Arguing that “time is of the essence,” a federal appeals court judge on Tuesday called for a prompt appeal to the Supreme Court to sort out the rights of transgender students when they use restrooms at school. Circuit Judge Paul V. Niemeyer helped clear the way for an early appeal by withholding a demand that the U.S. Court of Appeals for the Fourth Circuit vote on rehearing a test case on the issue.

At issue in the case of G.G. v. Gloucester County School Board is the meaning of a 1972 federal civil rights law that outlaws discrimination “because of sex” in federally funded education. Specially at issue is whether that law — known as “Title IX” — provides protection to students who identify as having a gender other than what was assigned to them at birth.

There is a widespread, and rapidly growing controversy over that and other transgender rights issues, and the case of sixteen-year-old “G.G.” could be the first to put the issue before the Supreme Court. In some ways, the rapid development of the controversy parallels that over same-sex marriage rights, leading to the Supreme Court decision recognizing equal rights of gays and lesbians to marry, across the nation.

In this case, G.G. is a sixteen-year-old student at Gloucester County High School in Gloucester Courthouse, Va., who was born a girl but now has the identity of a boy, and wishes to use the boys’ restroom at school. He won a two-to-one decision by a three-judge panel of the Fourth Circuit on April 19, and the en banc Fourth Circuit on Tuesday turned down a plea by the school board to reconsider the controversy.

Judge Niemeyer had dissented from the panel ruling, and said on Tuesday that the panel should itself reconsider. But, he went on to say that he declined to call for a vote among his colleagues on the question of en banc review. When there was no request for such a poll, the school board’s rehearing plea was denied.

In withholding such a request, the judge said that “the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application.” This case, he said, presented the legal issue clearly, without “the distraction of subservient issues.”

Summarizing some of the arguments he had made as the dissenter on the panel, Judge Niemeyer concluded: “Time is of the essence, and I can only urge the parties to seek Supreme Court review.”

The county school board, in response to a lawsuit by G.G. and his mother, Deirdre Grimm, had sought to defend its policy of providing separate restrooms and locker rooms based upon a student’s biological sex — that is, the sex noted on the birth certificate. Its policy also provided single-stall restrooms that any student, of either sex or of transgender identity, could use. G.G. and his mother contended that keeping him out of the boys’ restroom and confining him to a single-stall alternative was a form of discrimination based upon his gender identity.

The Fourth Circuit panel majority did not itself rule on whether Title IX actually does provide protection against students based on their gender identity, in federally funded educational programs. Instead, the panel majority chose to defer to the view of the U.S. Department of Education that Title IX’s reference to sex includes gender identity.

Technically, the panel majority had invoked what is called “Auer deference.” That is a reference to a 1997 Supreme Court decision in the case of Auer v. Robbins, declaring that federal courts should give deference to federal agencies’ interpretations of their own regulations, if those regulations are ambiguous. (While there are some members of the Supreme Court who in recent years have called for a reconsideration of the Auer decision, the Justices passed up a request to do that earlier this month, in denying review of United Student Aid Funds v. Bible; Justice Clarence Thomas dissented alone.)

After accepting the government’s view of the reach of Title IX, the Fourth Circuit panel ordered a federal trial judge to reconsider his ruling against G.G.’s claim, saying he had used the wrong legal analysis. The majority opinion was written by Circuit Judge Henry F. Floyd, and joined by Senior Circuit Judge Andre M. Davis. In a separation opinion, Judge Davis said he would have gone ahead and ruled in favor of G.G. now instead if returning it to the trial judge. The panel did refuse G.G.’s request that the case be reassigned to a different trial judge on the premise that the judge who ruled against him was biased. Judge Niemeyer agreed with leaving the case with the same judge, but dissented on all of the remainder of the majority ruling.

While much of the nationwide controversy over transgender rights lately has focused on school students and on access to restrooms, the controversy also has included a dispute over whether transgender rights are also protected under Title VII of the 1964 Civil Rights Act, which outlaws discrimination based upon sex in the workplace. The U.S. Equal Employment Opportunity Commission has been active in promoting transgender workers’ rights.

The Obama administration has taken a strong position in favor of transgender rights, and this month sent a nationwide letter to schools noting its position that Title IX does protect transgender students. The administration also has sued the state of North Carolina over the legality of a state law that restricts transgender rights of students and workers across the state. The administration also filed its views with the Fourth Circuit panel in the G.G. case. Presumably, it would take part in that case if it now moves on to the Supreme Court.

Among a variety of newly filed lawsuits around the country on that issue, eleven states have sued the Obama administration in a federal district court in Texas to challenge its policy position.